19730731 TZHC Iringa

\\ IN THE HIGH COURT OF TANZANIA t AT IRINGA ORIGINAL JURISDICTION (D0DOMA REGISTRY) CRIM,INAL SE.SIONS CASE NO0 3/73 THE REPUBLIC s- Versus JOSEPH MWILONGO Charge: Atterited murder c/s 211(1) cf the Penal Code J U D GM E NT MNZAVAS_J, The accused Joseph Mwilongo stands charged with attempted turder c/s 213. :1) o th' PPILa1 Code,, He pJaded not guilty to the charge. The pr.);ecutio case is that e accused on or about the 21st day of e'ary 1972 at Maguna vi..ige in Ifunda in the distr.ict 44 and region of Iringa attmpted unlawfully to cause the death of one, Rthard Josep - 'lwilongo, his sonf. In iupport of its ease the the Republic called three witnesses,, One, Wilson (P'Ji), a medical assistant related to the court that on 22/2/72 a patient aged about 14 years was brought to his dispensary0 According to his evidence he examined the pafient and found him to have a cut wound on the right Yde of his neck measuring 5" long, 1" wide and " deep This patient was Richard Joseph Mwilongo He formed the opinion that the wound was inflicted by a sharp weaponì and that a hiiifp could have caused such a wound,, Th 'jitriess also ld the cout that on 5/4/72 he was asked by the policc to examine ones. Joseph Mwilongo as to his mentl condition0 According t his testimony he examined him and found him to be mentally normal. The witness prbth:ced two PF3 in respect of Ri,chard Mwilongo and Joseph Mwilongo as exhibits. They were admitted and marked as exhbits "A" and 11 B4 respectively. One, Sitiyani (PW3) also gave evidence, Stiyani is mother in- - law of the accused. She related to the court that one day Richard Mwilongo, soneof the accused visited her and asked Eor food as he was hungry0 She offered- him food popul arly known as "Kande0" Sitiyani further told the court that after Richardhad eaten he left towards his house and that as he was going home he his father, the accused, who was going to €ape some ulanzi. The cuse4 according to her testimony had a kpife0 A knife was produced for identification purposes and the witnesdenti.-'fied it as the one the accus.d was carrying on that day - saying that --- rtJ.:daot mistaken it a she had often seen the accused using it,, • The witness told the court that she heard the accused asking his son where he had been and that his son replied that he had been at her house. Thereafter the accused is reported to have retorted: "Why • have you gone here contrary to my instructions that you were not to visit your grindrnother" 0 Richard is said to have rpibLted that he had gone to his grand—mother to take food0 According to her testimony at this juncture the accused twce pushed Richard to the ground and that in .-'.1-h times ordered him to stand up Then it was alleged that the accused x,,.d Richard by his neck and started cutting it with his knife saying as h was cutting "I will to kill you"0 The witness told the court that she raised an alarm and tha€the accused stopped cutting Richard and left to his house accompanied by hisi. The witness went and repod to their ell-1eader what the accused had done. When cross—examined y the coUrt the witness said oW shedidinjotthink-theaused,,,. • e o e /2 00 tended to kill ii son, She added that in her opinion the accused only \ed to maim his 4 on. Inspector B±lliflgtofl Swila (PW4) ine1iLtgated the case0 He ) evidence to the effect that he recovered accused's knife from a TANU -- chairman in Ifunda by the name of Leriard and that he sent the knife to the government chemist for analysis.. According to his evidence he later received chemjst's rpport which was to the effect tha ;i znife showed V no signs of blood, human or otherwise0 The kife was produced and marked as 'exhibit 'C"O The witiies also related to the court that he interroga- ted Richard regarding his inj.ry and that :ichard €c,ld him that it was his father who had cut him with a knife, wh.n cross-examined by the defence the witness replied that he interrogated the accused about Richard's nil- egation against him and that the accused denied cutting Richard with a knife or with any other weapon.. In his unsworn statement the accused denied attempting to kill his son. He told the court that. oid the material day he and Richard were in their pyrethrum shamba when they heard Sitiyanis alarm saying that his children had stolen her food called "Kande".. The accused said that on hearing Sitiyani's allegations she called Richard and his younger brother and asked them whether thy had infat stolen their grand-mother's food. The children denied to thave stolen their grand-mother's food. The accused then turned to Si'Liyan and told her of the children' s denial- Stiyarii i said to have insisted that the children had stolen her food and thatthis juncture Richard started running away and that as he was doing so he fell down and got injured in his neck. The accused also told the court that he also denied before his cell-leader that he had injured his son with a knife but that all the same the cell-leader arrested and handed him to the police.. In his defence he said that he has always been at loggerhead with his mother in- law Sitiyani because of her witchcraft. And that twice Sitiyani attempted to kill him and his family by poison whichcshe put in their food and aga- in in his ulanzi pombe.. The accused argued that it is because of this bad-blood between him and his mother in-law Sltivani that she had decided to tell lies" against him The defence then epplied to the court €c 1. accused's wife as a defence witness. The Republic objected to such application on the ground that accused's wife, Cecilia, was all the time seated in court while the case was going on and that because of this she has had a lot of opportunity to tell lies in favour of her husband. The court ru],ed against the Republic on the ground that the presence of a withess for th defence in court during the hearing of other witnesses does not by itself make her evidence inadrussible but that her presence in court could only effect the weight to be given to her evidence - ADAN s/oSHABAN vs R (196 H..C. D. 193 and PETER S/OMTABUZI vs R (1968) HOCO DO 149 41> In her evidence Cecilia (Dw2) related to the cour't that on the material day she had gone to weed her bamboo-trees shamba and that when she returned home at about 6 p.m. she saw her son Richard cring.. She• asked him what was the matter and that Richard told her that he had been beaten by his father, According to her evidence she then turned to her husband and asked him what had happened and that the accused admitted injuring Richard adding that he had assaulted him because he had, contrary to his instructions, gone to his grnnd.-mother. Cecilia further told the court that next day their cell-leader, one, Kiano Nwaikisa came to their house and interrogated the accused and that the accused admitted injuring Richard with a knife, and that the accused showed the knife to the cell- leader who took it into his custody. The knife (exhibit C) was si- own0 to the witness and she identified it as the same knife the accused handed to the ceLl-leader. As to the alleged enemity between her mother Sitiyani and her •, husband, the withess told the court that her mother was in the habit of practising witchcraft and that this is the reason why her husband stopped thei±- children from vis±ing Sitiyani's house, Like her.husband she also said that Sitiyani had twice attempted to kill then1 with poison.. In ;-s speech to the court the learned state attorney argued that in Ei case' of attempted murder what the court has to look for is whether the overt acts of the accused were sufficiently proximate to the actual offence.. In this case it was the Republic's submission that the accused's cutting.0/3 /OOOO 0,,Appoq noJ TIT)( 111t4 In P4T?1 0 4 pTes aq PUflOM aq4 PTIUT peSflZ'De e4 ao;eq jsnC 4 TUPATqTS JO UpAe aq4 03 5up1oz? PUV ° PUflOM aqq ;o qcIep aq4 woagH(E noqe Aiuo aeM UTq aq4 wor; pup oq pooq 6utAaIPD stesseA P°°'{ I.TA aqq aseo Stq uç 2tfl roop eq; Aq sem linoo eqj purcm PUP eptM ijT 5uo- ijS 2 joggns o4 tuTq60sqsnpo Cpjp-jj {DU stq UT tuq 4flZ CH uos.stq 5ut2 u -u ajTUN P pesn pesp etfl. OsPD sTq4 UI eq: go CW; aqq ero;eq jo 4P 4ueTT 2 ssPaql 3 0 suetuaunouod aqq aip og °suoqsnb 4ua E)JI 2 pesn eo ;o 4unow2 eq; PUP PTUUT spm punom aqqApoq aqq go jaed aqq 'PUflOM e4. 5utpt3ut Ut pesn uodeM ;o adA4 aqq 4 Noellp aqq ;o auiT4 aqq leWT40TA s -rq -p -q o UOTUUT eATtSod Q POWaOj peoput pq aopjnui pauie;q -tM pe6up uosed P JOq4eqmöuTpTDep UI P1PLPflI 04 WPq SflOAOTtb jo uiq asnpo o pepueuç pPq ATUO eq iaq4aqm .io zqnde{ aqq Aq POBaTTP se PP4Dfl1 IIT{ o; uotueut zAttSOd P pawjog P'-1 eq punom @44 5UT0TIJUT sem eq OWTJ aqq 4P Jeq;eqM ST 4pql 'uoTsenb TUt PUG? puoDes aT44 O. awoo MOU I esi; kqdd St Aios s 1 pesri UOTsnTouoo @qq 04 5UTWOD UT UOT4PtSeq SCBTtS aqq 4ou aAeq I qjnoo sT44 eo;oq Paaapua4 oDuepçAa oq; UQ (3eU uo puno; eq euo eq s punom P tflS pasneD CAP4 qOU pTnoo PUflO.26 etfl. Uo ;uewrtxsut dqs P uo eDuep pCUPEY zq; 1q peUtu12Xe—SS0rD Ut4M 3flO aqA p03 oqm 3U24STSSP TPDTPDU 4tj4 90 butssoq aq4 aAT@DeJ 4 0 u PIP UMOp UJCTp; pq eq aa ,4-9 2 panCut SCM PJ-PT 4C144 /TO4S S1pCSflZZYf W -çq 0 4 e;Uf 044 PCMO4S eq 42LR PUt? PI — ii ITe44 cq pe;P5oJe4ut s eq UM papqDTu 5u1ncur PO43TWPP p0Sflx2 044 4P44 4JflOD 044 p[o; os-EP TITeD 4 e0w ST 404M °SU0t3flSUT STt1 0. JCJ4UO0 Joq4ow—puPô ST4 P4TSTA pq eq asneoaq ulTq p03nPsse pq eq 4P44 buppC 'ptptj bu -ç.rnçu -ç pe -cwpC 04M pasnooe eq; pebolle4uT eqs pesnt 044 T4 icq painlut ueeq pCq eq 3C44 .teq pf03 pICqTj 3P3 ;inoz eq po; 'pedai Apui I T 'PTiTDe °0tU){ C UTM p0u 044 UT UOS 5t4 6uTn3 pesnC e43 MQS 04$ 31243 PTPS eqs U2Ic4s0Aeteq puo pu -rui Aui abu2qo ow OpCUJ 3P43 ez) ueplAe SaPTITOOD SCM 41 cuowt3se; jaq OAP () ChIDeD OUIT4 0tfl. 04 dn butteej: 5143 ;o SCM I P9OPUI urçq 4SUTP62 se -ri i9 0 4 pepwep OAP4 pTnoo eqs A4TW@U@ s143 To esneq qpq4 PUP 1uc 1 15 pu 0DDP 04; uee;eq pooq pq SCM 904 3C43 ;uewn& eue;ep 043 q;TM @aJbe ATC3 0 3 I &a9 TUN P 43M peu 043 u•ç uos stq 5u1;;nD pasnoop eq; MPS seAe UMO ieq q;TMeqs 3Ci43 ;zno 943 p10 4 TUPJcTTS ° OTM STq '(Ma) ChIDeD 4 ssGU4Tm eDue;ep s 1 pesnDDC oq; woi; 0ST2 ;nqsseu; - eo eq; (Md) TUCAT;TS wojj ATuo ;ou uOptAe sç e;Tu){ P 43P' ){DCU 514 UT WT4 6UT3fl) Aq PJP qD T8 U°S sTq pon-tlut PCSflDDP 343 ;0qJ 'pUflOM 943 5U1D11Ut UT 01U){ C SC uodCeM sno.e5up C qns pesn pesriDoC eq; esrteq uoTsrIDuo. s-rq; ?- P0AtJJC 1ceq; PTP Aeqj OUITq TIPT 04 UOT3UCUT eAI3Tsod P pawaog pq eq 05 6UTOP SCM eq ewi; 043 32 3C43 pUP 0TU) C q;TM uOS ST4 qno PIP f)OsnDDp 943 3C43 uotutdo oq ;o q;oq ao Aeqq. slossessC;ueuxeT;ueb oq; o; dn butuiurns e;;v - GPOO iuea 943 ;o 09 UOflDOS 03 J00D 044 pa Pup 1CT34CwwT SCM UOT3U4U-t ;O UOI3flD 9 SOd j@qqang woj4 pe;sTsep UOT;Ow UMO ST4 go 'PSflDDC oq; ;q; ;; eq; 3043 panbip aaqqjn';, SCM 41 uopDTps1nç e3PIIeddC T UT PAUe){ go qanoD 4 6 TH oqq cq pjeaq SCM OSCD ST4L op3onb SCM ES °Y°2 (ZL6T) SA VJ UT UOTSTDOp 044 UoTSStwqfls STt44 go 3JOddflS UI 0 eDue;ep STq UT os As 03 Uepnq eq; pCq eq 'ucs sTq encu1 04 P0PU04UT lcIUo pq eq ;pq; eAoxd 03 uepxnq ou pq pasnooe 343 q5noq4ip ;q; pen5e o TT —qndaN 043 wtq ItPt 04 5U1;dule;;C 03 pesoddo SC U0S 514 ernlut o; pepue;u -r JtUO pasnDDP @qq 3244 4u@wnbJP S0Sfl0D 0DU03P 943 03 SV °0DU3J0 3C44 3TWWOD 0 3dU1e33P UP 03 S4UflOUI2 9DU00 UP 0. PC3DOUU0D AIO3OUJOJ 0U PUP Ai;tpewui -t T 4DT4M 302 UP 3243 P104 SCM 31 4DT4M UT 81 °V° ( 6561) ZI SA 'flJ4 0/5 VM)iIUNVW UT UOTSTDOP 044 04 P030J 0S[0 SCM 3XflOD eqJ, °UTCA iPinfnC 043 PUP £03tC pC.CD 343 SC POWCU ate s95s0A pooq 041 43P0P 03 poq OAC4 PTnOO 3UCUT2IdWOD 043 p90A3S 3t0M STOSSCA pooq esoq; ;ç 3243 3flOD 043 P1 0 3 OSIC JoqDop 34J 'puflOM °4? PO4TUUT pas=2 043 2aa2 OLfl oeq 4snI pessd SIOSSOA pooq asaqq qpqq puP )jDOU 344 q5nojqq ÔUISSCcV SICSSOA pooq 6q OC 9t043 qeqq 3D03 34. 03 SCM 4DT4M (Td) 9DU1DV S 1 3UC3STSSP ICDTPOW 343 oq p0e3 SCM Xfl0D aqq quawn5je STq ;o ; u 'ep.tnux paqdwa4qP 03 p9.Ufl0WP e;aeq; PUP UOS STq IIPi 03 U0 - T4 43TM 93DUU0D AIO3CTPOuIIUT 3DP UP SCM ;tu)f C 43TM (DOU s,uos \ /oou000000uu W \\\\ ) a a 0 0 0 0 0 0.0 0 / With respect I agree with the republic that all these facts ken together tend to show that at the time the accused was cutting his -- son's neck had formed a positive intention to kill him0 Under section 380 of the Penal Code it is immaterial that he, of his own motion, desisted 'V from further prosecution of his intention 0 I would however before I conclude like to mert€ion to the learned state attorney that the decision in KETETA vs R(uoted_above)did not decide that the accused in that case had the burden to say that he was on safari on a path through the farm but not to prove so This was said by the magistrate who tried the case in the district coHrt, It is clear from the decision of the Migh Court of Kenya (page 534 paragraph ten) that the above passage by the learned magistrate was held to be a misdirection 0 The High Court said, and in my view rightly so; and I quote: "The last sentence is not comprehensible to us0 Be that as it may there was no such burden upon the appellant". Equally in this case there was no burden in the accused to say that he did not intend to kill his son. To say so would be ta'tamount to shifting the burden of proof to an accu- sed0 This is certainly not the law regarding the burdennof proof in e't criminal charge. The accused was ukider the law entitled to keep quiet and offer no defence if he so wished, and his keeping quiet could not be subjected to an adverse comment by the prosecution0 However, I am satisfied, as I have already said, that there is ample evidence implicating the accused with the offence of attempted murder. Like the unanimous opinion of the gentlemen assessors I am satisfied that the prosecution has proved its case against the accused - beyond all reasonable doubt and I accordingly find the accused guilty of attempted murder c/s 211(1) of the Penal Code as charged. /L& NOS! - JUDGE 0 0 0 0 0 0 /5 - V 0 • / 5 - ution - The accused is a first offender0 tigation - Mr0 Mbezi) The accused is married and has four childre, ( . it was testified by the wife the house they were living has broken down0 The parents of both the accused and his wife are dead0 The wife and children whol depend on the accused person0 The accused has led an unblemished life up to this offence0 He has ieen in remand for about 17 months. In view of these mitigating fac;ors L pray to the court to be lenient to him0 Accused - I have nothing to add. Sentence - I take into account that the accused has, up to the time he committed this offence, been leading an un—blemished life0 But his first offence is a serious one. Taking all the mitigating circumstances into account I cannot sentence the accused to any lesser sentence than a sent- ence of 3 years imprisonment0 He is so sentenced0 R.O.A. to E,AOCOO explained. I IRINGA N0. 31/7/73 JU Mwipopo for the Republic. I Nbezi for the Accused. 4